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Why We Care

HUD Releases FAQ on Using Arrest Records to Disqualify People from Receiving Housing Assistance

Apr 04, 2016

On March 31, HUD issued new guidance in the form of frequently asked questions (FAQs) as a follow-up to an earlier HUD notice on the use of arrest records in screening applicants for federally-assisted housing (see Memo 11/9/15). That notice (PIH 2015-19) clarifies that an individual’s arrest record alone cannot be used as evidence that he or she has committed a crime.

The FAQ guidance reiterates HUD’s earlier position on use of arrest records, but notes that an arrest record might properly trigger an inquiry by a public housing agency (PHA) or property owner into whether a person participated in criminal activity that would disqualify him or her from receiving housing assistance. During that inquiry, PHAs and property owners can consider other evidence beyond the arrest, including police reports, witness statements, and filed charges. However, HUD regulations specifically provide that a PHA or property owner must show a “preponderance of the evidence” that the person engaged in disqualifying criminal activity.

The FAQ guidance also states, “Before a PHA denies admission to the public housing or Section 8 program on the basis of a criminal record, the PHA must notify the applicant of the proposed decision and provide the applicant and the subject of the record with a copy of the criminal record and an opportunity to dispute the accuracy and relevance of the record.” Property owners must also provide applicants with a written rejection notice that states the reason for rejection and advise the applicant of their subsequent rights.

The guidance also reminds PHAs and owners of HUD-assisted housing that HUD does not require the adoption of “one-strike” policies and that they have an obligation to protect the due process and civil rights of tenants and applicants applying for housing assistance.

HUD encourages all PHAs to review and update their Admissions and Continued Occupancy Policies (ACOP) or Section 8 Administrative Plans to ensure they comply with PIH 2015-19.